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ELCDismissedKisumu ELC Suit No. 47 of 2020 (consolidated with Kisumu ELC Suit No. 33B of 2020 (O.S))· [2024] KEELC 743 (KLR)

Abok & another v Andega & 5 others (Enviromental and Land Originating Summons 33B of 2020 & Environment and Land Case Civil Suit 47 of 2020 (Consolidated)) [2024] KEELC 743 (KLR)

Environment and Land Court
19 February 2024
6,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out both land claims because the claimant sued the wrong people and mixed up two incompatible legal arguments.

What this practically means

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Executive summary

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The Applicant, widow and administrator of the estate of Jacob Abok Milaw, filed two consolidated suits against the widow and sons of the late George Andega Milaw over Plot No. Ahero/44, Ahero Town. In the Originating Summons she sought a declaration of title by adverse possession since 1968 and registration as owner; in the plaint (ELC No. 47 of 2020) she sought a declaration that Andega held the leasehold interest in trust for the three brothers' families, general damages for breach of trust and a permanent injunction, alleging fraudulent sole registration and demolition of the shopping units. The Respondents denied the claims, asserting that Andega applied for and was allocated the property in 1961, constructed the building, paid rates, and that the lease was erroneously issued in the names of the original allottees; they also denied capacity to be sued, having no grant over Andega's estate. The court found both suits incompetent as brought against persons who were not administrators of Andega's estate and against persons with no registered title. On the merits, the Applicant's own case that her husband occupied the property as a co-owner was inconsistent with adverse possession. The trust claim failed because the evidence showed Andega applied for, was allocated, and paid for the property, and proprietary estoppel was never pleaded. Both suits were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Applicant acquired title to the suit property by adverse possession

Holding

No. The Originating Summons was incompetent, being directed at persons who were not administrators of Andega's estate and who held no registered title; on the merits the Applicant's own case placed her husband on the property as a co-owner, which defeated the adverse possession claim.

Reasoning

The claim was directed at the estate of Andega, who died in 2018 before the suit was filed. The Respondents denied being administrators and the Applicant produced no grant of letters of administration proving otherwise. Nor was any Respondent shown to be the registered owner. Even assuming the claim was against them personally, the Applicant's own case was that her husband entered the property as a co-owner, so his occupation was never adverse to Andega's interest.

p. 10
02

Whether Andega held the suit property in trust for the three brothers' families (ELC No. 47 of 2020)

Holding

No. The evidence showed Andega applied for the allocation, was allocated the property, paid the fees and paid land rent and rates over the years; there was no proof of contribution by Abok or of an intention to create a trust, and proprietary estoppel was never pleaded.

Reasoning

The court applied the principle that a trust is never implied save in cases of absolute necessity and where the intention to create one is clearly determined. Records showed Andega's 1961 application and 1967 allotment and his payment of fees, rent and rates. Nothing in the Applicant's receipts tied the purchased materials to construction on the suit property. A plea of proprietary estoppel, which was never made, would have entitled Abok only to compensation, not ownership.

p. 12
03

Whether the Respondents had capacity to be sued on behalf of the estate of George Andega Milaw (deceased)

Holding

No. The Respondents denied being administrators of the estate, and the burden lay on the Applicant to prove they held a grant of letters of administration, which was not tendered.

Reasoning

Andega died on 5th January 2018 and the Respondents acquired proprietary interest only upon his death. The Respondents contended no administrator had been appointed over his estate. Since the Applicant sued them as representing the estate, it was for her to demonstrate that they had been issued with a grant of letters of administration. No such proof was tendered at trial, rendering both suits incompetent against them.

p. 9

Legal principles established

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  • An adverse possession claim can only be brought against a legal owner of the property, and where the property belongs to a deceased person's estate, the claim must be brought against the duly appointed administrators of that estate.
  • A person who enters land as a co-owner cannot thereafter claim title to the same land by adverse possession; claims of ownership and adverse possession are inconsistent.
  • Trusts are not lightly implied; the court will only imply a trust in a case of absolute necessity and the intention to create one must be clearly determined.
  • Contribution towards construction of a building on land owned by another does not, without more, make the contributor a co-owner of the land; at most it could ground proprietary estoppel entitling the contributor to compensation, if pleaded.

Court orders

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  1. 1.Both suits (Kisumu ELC Suit No. 33B of 2020 (O.S) and Kisumu ELC Suit No. 47 of 2020) dismissed
  2. 2.Each party to bear its own costs of the two suits

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7; Order 40 Rules 1, 2, 3(3), 4
  • Limitation of Actions Act (Chapter 22, Laws of Kenya)Sections 7, 17, 38
  • Land Act, 2012Section 7(d)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 27
  • Trustee Actdefinitions of trust and trustee

Cases cited (16)

  • Adnam v. Earl of Sandwich
    (1877) 2 QB 845
  • Gachuma Gacheru v. Maina Kabuchwa
    [2016] eKLR
  • Wambungu v. Njuguna
    [1983] eKLR
  • Kasuve v. Mwaani Investments Limited & 4 Others
    [2004] 1 KLR 184
  • Mbira v. Gachuhi
    [2002] 1 EArl 137
  • Ruth Wangari Kanyagia v. Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Peter Okoth v. Ambrose Ochido Andajo & Benedict Odhiambo Okech
    [2021] eKLR
  • Hussein Jan Mohamed & Sons v. Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Republic v. Ihururu Dairy Farmers Co-Operative Society Ltd., and Rosemary Wairimu Munene (Ex parte Applicant), Judicial Review Application No. 6 of 2004
  • Isack M'Inanga Kiebia v. Isaaya Theuri M'Lintari & Another, Supreme Court Petition No. 15 of 2015
  • Kiplagat Kotut v. Rose Jebor Kipngok
    [2019] eKLR
  • Willy Kimutai Kitilit v. Michael Kibet
    [2018] eKLR
  • Juletabi African Adventure Limited & another v. Christopher Michael Lockley
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Mwangi Mbothu & 9 others v. Gachira Waitimu & 9 Others
    [1986] eKLR
  • Charles K. Kandie vs. Mary Kimoi Sang
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over claims relating to title and occupation of land (Plot No. Ahero/44)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abok & another v Andega & 5 others (Enviromental and Land Originating Summons 33B of 2020 & Environment and Land Case Civil Suit 47 of 2020 (Consolidated)) [2024] KEELC 743 (KLR)", Case Analysis (2024). Kisumu ELC Suit No. 47 of 2020 (consolidated with Kisumu ELC Suit No. 33B of 2020 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/743/eng@2024-02-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.